Jersey Unreported Judgments

[2006]JRC186

ROYAL COURT

(Superior Number)

(Exercising the appellate jurisdiction conferred on it by Article 22 of the Court of Appeal (Jersey) Law 1961)

 

12^th December 2006

Before     :

F. C. Hamon, Esq., O.B.E., Commissioner and Jurats de Veulle, Bullen, Le Breton, King and Newcombe.

Kelvin Peter Monet

-v-

The Attorney General

Appeal to the Superior Number of the Royal Court, against sentences passed by the Inferior Number on 22^nd September, 2006, following guilty pleas to:

First Indictment

 

1 count of:

Having aided, assisted or participated in illegal entry and larceny (Count 1A).

 

Second Indictment

 

1 count of:	Taking a motor vehicle without the owner's consent or other lawful authority, contrary to Article 53 (1) of the Road Traffic (Jersey) Law 1956 (Count 1).
1 count of:	Driving without a licence, contrary to Article 4 (1) of the Road Traffic (Jersey) Law, 1956 (Count 2).
1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2 of the Motor Traffic (Third Party Insurance) (Jersey) Law, 1948 (Count 3).

 

Appeal against sentence of 2½ years imposed by the Inferior Number on 22^nd September, 2006 on the first indictment and 5 months on the second indictment, to run consecutively.

Advocate R. J. MacRae  for the Appellant.

J. C. Gollop, Esq., Crown Advocate.

JUDGMENT

THE COMMISSIONER:

1.        On the 20^th December, 2005, Monet was intending to visit a friend in hospital.  That friend apparently was in Chevalier Ward.  He met the two Munks brothers and Ahier at the Newgate Street entrance to the Hospital, but entry could not be gained.  These three intended to steal pharmaceutical drugs and Ahier had armed himself for this purpose with a hammer and a chisel which he carried in a laundry type bag.

2.        The four men eventually entered the hospital by the Gloucester Street Entrance, and made their way to Plemont Ward.  We are going to deal with the events leading up to that later in this judgment. 

3.        It was on Plemont ward that Monet distracted a nurse by engaging her in conversation whilst the other three, armed, carried out their intended plan.  While Oliver Munks stood outside the treatment room as a lookout, his two companions smashed open the drugs cabinet and stole drugs to the value of £437.30.

4.        Monet left the ward not having visited his friend and the other three made good their escape quite separately but chased by nursing staff.  Monet was arrested outside the Hospital.   As a matter of historical notice Lawrence Munks took some of the drugs and became unconscious.  He was taken to hospital by paramedics but later discharged himself.  The three were arrested at another address the following morning.  The vast majority of the drugs, quantities of Diamorphine and Temazepam tablets have not been recovered. 

5.        Monet originally pleaded not guilty to any involvement in the illegal entry and larceny and was granted bail despite his 12 previous convictions for a total of 43 offences, including violence, dishonesty, fraud, public order, motoring and drug offences.

6.        Whilst on bail, and at 2. 30 in the morning whilst apparently well under the influence of alcohol, he decided to move his girlfriend's car.  He had no insurance, was not authorised to drive the vehicle and did not have a driving licence.  He was stopped by police officers because of his erratic driving as he drove, with no lights, down James Street and into Minden Place.

7.        He eventually pleaded guilty on the first indictment to one count of having aided, assisted or participated in illegal entry and larceny and on the second indictment of taking a motor vehicle without the owner's consent or other lawful authority, driving without a licence, using a motor vehicle uninsured against third party risks and failing to give a specimen of breath.

8.        At the time of these offences he had not completed a Community Service Order of 90 hours imposed by the Magistrate's Court on 9^th August 2005 for two other offences.  He was, at the time of the second offence, on bail for the first offence.

9.        The Court, on the first count of having aided, assisted or participated in illegal entry to the General Hospital and the stealing of a quantity of pharmaceutical drugs, imposed a sentence on Monet of 2½ years.  His co-accused each received 3½ years.

10.      Although Advocate MacRae withdrew any of his written reliance on the case of AG -v- Gaffney Jersey unreported [1995/101] we must cite Gaffney which was heard on the 5^th June 1995, because that case is not really in point in cases such as that before us.  What was said by the Court in that case was this:

"We need, for a moment, to consider whether we have to set a guideline for criminally breaking and entering commercial premises at night.  We have examined very carefully all the authorities that have been cited to us but we must say that we find it extremely difficult in this particular case to set a benchmark.  Each case will have an infinite number of variations and will depend, for example, on the amount of force used, the quantity of goods stolen and their value, the time of day, and whether the act was impulsive or planned.

Despite the urging the of the learned Crown Advocate we prefer to remain in the context of the case of Dring v AG (12^th February, 1992) Jersey Unreported.  In that case the Court said this at paragraph 2 of the Judgment:

"As the learned Bailiff rightly said when passing sentence, the appropriate level of tariff sentence for the illegal entry and larceny of commercial premises by night is of the order of fifteen months' imprisonment."

We feel that, as in 1995, the order of imprisonment should not be in the region of 18 months.  We do not intend to take the matter any further than that despite the urging that has been made upon us.  If we leave the matter as set out in Dring, it allows us to consider aggravating or mitigating factors in each particular case."

11.      That, of course, is not the only point made in this application by Advocate MacRae, but we must point out that the Social Enquiry Report, which the sentencing court considered carefully, gave a non-custodial alternative.  What the probation officer said in his very detailed report was this:

"Monet is aware that the Court will almost inevitably sentence him to custody today.  He comes before the Court with prior convictions, not as a young offender and having committed a number of offences whilst subject to a Court Order and whilst on bail.

Although the writer acknowledges fully the above, Mr Monet has been assessed as suitable for an alternative sentence should his mitigation today allow for such consideration."

He was also assessed in the Report as being "of a high risk to re-offend".

12.      One of the many points, made in his excellent address by Advocate MacRae this morning, is that the Court said nothing about the applicant's mitigation before it imposed sentence.  It is, of course, inconceivable to us the Court did not study the background reports and in fact they said as much:

"The Court has considered very carefully all the material placed before it, in terms of background reports and reports from the Drug and Alcohol Service.  We have considered all the submissions of counsel for each of these defendants."

13.      Counsel has spoken at length of Monet's last minute and peripheral involvement in the illegal entry to the Hospital and the argument of Mr MacRae that the conversation between the applicant and the member of staff could not have lasted more than a maximum of 15 seconds (this is in his written submissions) after which according to Mr MacRae he walked away and exited the ward.  That on the facts, as we now understand them, cannot be completely correct.  We know that the applicant met with his three co-accused when they attempted to enter the Hospital from the Newgate Street entrance.  They all eventually moved from there to the Gloucester Street entrance and Monet by that time had agreed to become a party to what was, by any standard, a most serious criminal offence.

14.      He did speak to a nurse and when he left the Hospital after the illegal entry; his words to the nurse who confronted him were "It's nothing to do with me.  What are you fucking blaming me for?"  That statement of course, as Advocate MacRae has pointed out to us, is new and was not before the Court below. 

15.      So Monet was confronted by a nurse and, as far as this Court is concerned, he was a willing participant in what was, by any stretch of the imagination, a serious crime and the sentencing Court said this:

"We disagree with the contentions made by counsel for some of the defendants that there is no material distinction between breaking into a chemist's shop and breaking into a drugs cupboard in the General Hospital.  To violate the sanctity of the General Hospital seems to us to be a serious aggravating factor". 

The Royal Court, in our view, was completely right to single out this particular offence as one of the greatest seriousness.

16.      We have carefully read the witness statements of one of the nurses at the Hospital who said this:

"I have spoken to several members of staff that were on that evening and this has had a severe effect on most of them.  Some of the nurses said they were more apprehensive when carrying on their normal duties and are frightened to go to the car park on their own due to this event.  Some girls are also frightened of the fact that they have made statements and others are frightened that they may be asked to.  All of this was because the ward was broken into.  I have also been made aware that a patient, at the time of the break in, was also offered counselling due to the trauma she suffered.  This was a horrible thing to happen and I do not think anyone on the ward has not been affected by it."

17.      Whilst it has to be agreed that Monet's involvement was impulsive and peripheral the sentencing Court obviously took that into account.  The learned Bailiff said as much:

"Monet, the Court accepts what has been said by your counsel, that you came into this enterprise late in the day, and we are sentencing you on that basis."

18.      Monet agreed to get involved and got involved, and his involvement allowed his three co-accused to achieve their stated aim.  Monet eventually pleaded guilty, no doubt on advice from counsel, to having aided, assisted or participated in the illegal entry and larceny.

19.      The sentence on the second indictment, the driving offences, is categorised by Advocate MacRae as manifestly excessive and the argument is put that this was a technical offence and that Monet was moving his girlfriend's car to a public car park rather than stealing a vehicle and that he had driven only a short distance when he was stopped.  The applicant was on bail for the first offence and he was clearly under the influence of drink or drugs.  We appreciate that his previous offences took place many years earlier but the Crown argued, and this was accepted by the Court, that the offences merited consecutive sentences. 

20.      As stated above, the applicant was of course on bail for the first offence at the time the second offence was committed.  It is argued strongly by Advocate MacRae that the sentence imposed, if they had to be custodial, should not have exceeded 4 months.  In the case of AG v McIntrye (21^st January) 1999, the Court of Appeal said:

"It appears to us that the use of the words "totality" has led the applicant or his Advocate along a line of argument that is not in fact appropriate.  The purpose of the totality principle is that where a court is passing consecutive sentences it is incumbent upon the court, after having determined the appropriate sentence to be passed in respect of the offences concerned to stand back and satisfy itself that the totality of the consecutive sentences is not excessive when looked at in the round."

The court in its judgment sentenced Monet to 5 months' imprisonment for a second offence, not in fact a 6 month sentence, and Crown Advocate Gollop conceded that we should accept that figure.  We can see the argument of Advocate MacRae that mitigation should have been mentioned even though, in regard to Monet, the mitigation was limited.  He committed his second offence on bail, he was totally belligerent to the investigating officers, who wished to test his level of drunkenness, and he declined, eventually, to give a specimen or a breath test.  These are quite disparate offences and we do not in any way wish to undermine the principle of consecutive sentencing for offences of a separate nature.  Looking at the matter in the round, without allocating any particular discount to any particular element we will however make the sentences concurrent, rather than consecutive, which reduces the overall sentence to 2½ years and the driving bans remain intact.

Authorities

AG -v- Gaffney Jersey unreported [1995/101].

AG -v- McIntrye (21^st January) 1999.